[Congressional Record (Bound Edition), Volume 151 (2005), Part 5]
[Senate]
[Pages 6991-6994]
[From the U.S. Government Publishing Office, www.gpo.gov]




                        CONSTITUTIONAL CONFLICT

  Mr. CRAIG. Mr. President, is it a religious test? Is it an 
environmental test? Is it a right-to-life test? Is it a racial test? 
No. Now we say it is Tom DeLay's test.
  If it weren't so deadly serious, it would be laughably humorous.
  But the other side has reduced what is a tremendously important 
constitutional responsibility of this Senate into a political game.
  From the very outset, when the Bush administration came to town, 
telegraphed across the Nation was a very clear message by our 
colleagues from the other side. Inside their internal party politics 
and beyond, it was all about politics and who they would reject, or who 
they would disallow the right to have a vote on the floor of the Senate 
when nominated by this President--if that nominee made it through the 
Judiciary Committee--whether they would be allowed to became a sitting 
judge in one of the courts of the United States for which the 
President, the Congress, and the Senate are responsible.
  Religious test, environmental test, a right-to-life test, a racial 
test, now a Tom DeLay test. Doesn't the other side have anything to 
talk about nowadays? Don't they have a policy they can take to the 
American people that will grasp the majority of the American people's 
minds or is it simply targeting around the edges?
  It is deadly serious, and it is not humorous at all.
  I rise today to discuss what is a most important constitutional 
conflict that has developed here in the Senate, and the response that I 
believe the Senate must act clearly and profoundly on this issue.
  In the time that I have been in public office, I have watched the 
Congress and participated in the Congress in conflicts that some would 
call historic by nature--an impeachment, a contested election, a 
midsession shift of party control of the Senate, just to name a few.
  But no issue, in my opinion, has threatened to alter the fundamental 
architecture of Government in the way that it is now being threatened 
today by the conflict over judicial nominees.
  Some of our colleagues have attempted to downplay the importance of 
the issue. I think that is what you heard this morning--a reduction of 
the issue to a debate about Tom DeLay's wisdom or a quote about the 
Internet. This is a lot more important than any one individual, 
including Tom DeLay.
  This is really about the Constitution of the United States. They have 
attempted to call it, Well, it is ``just business as usual'' to oppose 
nominees. They have tried to portray it as insignificant in terms of 
the number of judges. You just heard that a few moments ago about their 
selective filibuster. They say that is fair and full in the process.
  They have characterized it as a simple political struggle between the 
parties. Well, it is political, but it is constitutional.
  In reality, this issue has the potential of altering the balance of 
power established by the Constitution between our two branches of 
Government.
  I say this because the Constitution gives the Senate a role in 
Presidential appointments--the ability to accept or reject an 
appointment--and when a filibuster stops the Senate from taking that 
vote, it is frustrating the ability of all Senators to fulfill their 
constitutional duty, to exercise their fundamental constitutional power 
and participate in the essential function of the executive.
  A filibuster doesn't just prevent the Senate from acting, it also 
stops a nominee in midprocess without a final decision as to whether a 
nominee is confirmed or rejected, in essence giving the minority of 
Senators the power to prevent the executive branch from performing its 
constitutional duty.

[[Page 6992]]

  That is exactly what we have seen by design, by intent, and without 
question by votes.
  Let me talk about a candidate specifically. Let me talk about my own 
home State of Idaho and the President's nominee to the Ninth Circuit, 
Bill Myers.
  Bill has had a distinguished career as an attorney, particularly in 
the area of natural resources and the public land laws of our country 
where he is nationally recognized by both sides as an expert. These are 
issues of particular importance to public land States in the West, such 
as Idaho, represented in the Ninth Circuit.
  These issues aren't just professional business to him. In his private 
life, he has also long been an outdoorsman, and he has spent a 
significant amount of time volunteering for the National Park Service.
  Bill Myers is a public lands man. He loves it, he enjoys it, and he 
has participated in it. He came to this Senate to work for a former 
Senator, Allen Simpson, Deputy General Counsel at the Department of 
Energy, and Assistant to the Attorney General of the United States. The 
Senate confirmed him by unanimous consent as the Solicitor to the 
Department of the Interior in 2001.
  The entire Idaho delegation supports him.
  So what is wrong with Bill Myers? Is it a partisan issue? No. 
Democrat Governor of Idaho, Cecil Andrus, Secretary of the Interior for 
President Carter, said Bill Myers is a man of great ``personal 
integrity, judicial temperament, and legal experience,'' as well as he 
has ``the ability to act fairly on matters of law that will come before 
him on the court.'' Democratic Governor from Wyoming, Mike Sullivan, 
said the same thing.
  So what is wrong with Bill Myers? Why, when last year the Senate 
Judiciary Committee voted him out, to send him to the Senate floor, did 
he never get a vote? Why was he refused a vote and filibustered?
  Let me tell you why. I know it firsthand. I served on the Judiciary 
Committee. I watched the vote. And the day the Senate Judiciary 
Committee voted him to the floor of the Senate, a senior member from 
the other side of that committee walked out with me and said: You know, 
Larry, your nominee is not going to get a vote on the floor.
  They had planned it well in advance. They had picked Bill Myers like 
they have picked other judicial nominees for their political pawn. The 
conversation went on, but it was private and I don't divulge it.
  But I will say this: From the conversation, I understood very clearly 
why Bill Myers would not get a vote and why they would filibuster him. 
It was just prior to the election, a very important election, a 
Presidential election. They had already picked the candidate they could 
argue had racial undertones. They had already picked the candidate they 
believed might be pro-life. They had already picked other candidates 
who didn't fit their political demographics. They picked Bill Myers 
because of his environmental record, and they told me so.
  Is that picking a person because of their talent, because of their 
experience, because of their judicial temperament, or is it simply 
playing what I call the ``nominee process of political roulette''? Pick 
the candidate who serves your political purpose and prove to your 
constituent base that you are out there for them.
  If that is what the nominating process has reduced itself to, then we 
are not only in a constitutional crisis--we are without question in a 
political constitutional crisis. No. What we do is important in the 
Senate. We affect the lives of all Americans in one way or another. But 
we have a constitutional responsibility when it comes to judges who are 
nominated by our President who are sent forth by the Judiciary 
Committee of this Senate once fully vetted and interviewed and 
questioned.
  Once the majority of that committee has spoken, and that nominee 
comes to the floor of the Senate, I firmly believe that nominee 
deserves an up-or-down vote. That is the history of the Senate. That is 
the responsibility of advice and consent. That is what this Senate has 
done down through the decades.
  But not now. Not in the politics of the other side. It does not serve 
their purpose anymore. So they have reduced it to the rhetoric of 
saying this is normal; this is usual; this is the politics of the day. 
Those Republicans are being terribly political at this moment.
  I don't agree with that. I have watched this much too long. It is now 
time the Senate act to establish once again our constitutional role in 
the advice and consent with the executive branch of Government.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from North Carolina is recognized.
  Mr. BURR. Mr. President, I rise today to urge our leadership and the 
rest of my colleagues in the Senate to preserve the significance of our 
responsibility, enumerated in the Constitution, and to work together to 
address the judicial crisis that threatens to severely damage our 
system.
  As Members of the Senate, we each bring our own unique background and 
experience to this institution. And our progress as a body often 
requires us to make difficult decisions as individuals. While our 
individual positions on various issues will certainly differ, we must 
stand together to repair the judicial confirmation process in this 
body.
  Several judicial vacancies have been lingering in our courts for 
years, causing many jurisdictions, including one in my home State of 
North Carolina, to be declared ``judicial emergencies.'' It is our 
responsibility as Senators to respond to these judicial emergencies 
with action and determination.
  It is inexcusable that we allow judicial vacancies to linger for 6 
years or, in some cases, longer. Such is the case for the people of my 
State in the Eastern District of North Carolina. The North Carolina 
Eastern District post is the longest district court vacancy in the 
Nation--a seat vacant since 1997. In 1999, the administrative office of 
the courts declared the district a ``judicial emergency'' and it has 
been categorized this way for the last 6 years.
  In North Carolina we face challenges on the appellate level as well. 
There are 15 circuit court judgeships in the Fourth Circuit but only 
one of these is occupied by a North Carolina judge. North Carolina is 
significantly underrepresented at the circuit court level. A great deal 
of this can, of course, be attributed to the political nature of the 
debate surrounding nominations to the Fourth Circuit. All North 
Carolinians deserve another voice on the Fourth Circuit.
  Judge Boyle, currently serving as a District Court judge for the 
Eastern District of North Carolina, was nominated in May, 2001, by the 
President to serve on the Fourth Circuit Court of Appeals. The American 
Bar Association has unanimously rated Judge Boyle as ``well-
qualified,'' and has stated he would make an outstanding appellate 
judge.
  The act of merely considering Judge Boyle's nomination should not be 
a political issue for this distinguished body. Unfortunately, over the 
past few years it has become one. Before the 108th Congress, when Judge 
Boyle was first nominated, no judicial nomination which had a clear 
majority of Senators supporting the nomination was ever prevented from 
receiving an up-or-down vote. This current judicial confirmation 
situation is unprecedented.
  We should put aside the grievances that have prevented the 
consideration of judges through the past three Presidential 
administrations and work together to find a solution. As Senators we 
must face this crisis with optimism and confidence. Working together we 
must address this situation directly because I believe that our 
constituents do not hope for, nor do they expect, inaction from us on 
such an important part of our system of government. Partisan bickering 
or avoidance of our procedural challenges is not a responsible course 
of action.
  Let me be clear. I believe if one of my colleagues objects to a 
particular judicial nominee, it is certainly appropriate and fair for 
my colleague to vote against that nominee on the Senate floor. But 
denying these patriotic Americans, of both parties, who seek to

[[Page 6993]]

serve this country an up-or-down vote is simply not fair, and it 
certainly was not the intention of our Founding Fathers when they 
designed and created this very institution.
  As our country plants the seeds of democracy across the world, we 
have the essential obligation to continue to operate as the model. The 
integrity of the judicial system is vital and will certainly suffer as 
a result of inaction. Maintaining our Nation's long-standing 
distinction requires that its legislature act to ensure harmony and 
balance among its citizens and its branches of government.
  We need to fix this broken process. We need to end the judicial 
crisis. And we need to vote on our judges.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah is recognized.
  Mr. HATCH. How much time remains?
  The PRESIDING OFFICER. There is approximately 14 minutes remaining.
  Mr. HATCH. I ask unanimous consent I be permitted to finish my 
statement if it goes a little bit longer.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HATCH. Mr. President, in Lewis Carroll's book ``Through the 
Looking Glass,'' Humpty Dumpty has a famous exchange with Alice in 
which he says:

       When I use a word it means just what I choose it to mean--
     neither more nor less.

  Many partisans in the debate over judicial nominations or 
appointments in the Senate and among interest groups, particularly, 
have the same attitude. Let me offer two examples. One is, they play 
games with the word ``filibuster.'' The current filibusters against 
judicial nominations have four features: First, they involve defeating 
attempts to end debate such as defeating a motion to invoke cloture 
under rule XXII; second, they target nominations with clear bipartisan 
majority support that would be approved if there were a confirmation 
vote; three, they are not about debating these nominations but about 
defeating them; and fourth, these filibusters are completely partisan, 
organized, and driven by party leaders.
  For 2 years, Democrats have claimed these filibusters are nothing 
new, that they happened before the 108th Congress. Last Friday, the 
distinguished assistant minority leader Senator Durbin offered his 
evidence. He printed in the Record a document titled ``History of 
Filibusters and Judges.'' It was a list of 12 judicial nominations 
which it said ``needed 60 (or more) votes--cloture--in order to end a 
filibuster.''
  Yet these are filibusters only if, as Humpty Dumpty put it, the word 
filibuster means whatever you choose it to mean.
  Listed first is the 1881 nomination of Stanley Matthews to the 
Supreme Court. President Rutherford B. Hayes nominated Matthews shortly 
before leaving office and the Judiciary Committee postponed 
consideration. Hayes' successor, President James Garfield, renominated 
Matthews on March 14, 1881, and the Senate confirmed him on May 12. 
That is hardly a filibuster, yet that is the big news. They have looked 
so hard to try to find some justification for the inappropriate actions 
they have taken in the Senate.
  Two days ago, Senator Nelson of Florida repeated Senator Durbin's 
claim that this was the first judicial nomination filibuster in 
American history. That claim also appears on the Web site of the 
leftwing Alliance for Justice whose president is shopping it around on 
the talk radio circuit.
  This claim is incomprehensible. There was no cloture vote on the 
Matthews nomination for a very simple reason: Our cloture rule would 
not exist, would not even come into existence, for another 36 years. 
Nor were 60 votes needed even for confirmation since the Senate 
contained only 76 Members.
  If, as Senator Durbin apparently urges, we today use the Matthews 
nomination as a model, we would debate judicial nominations, including 
those resubmitted after a Presidential election, and then vote them up 
or down because that is what happened in the Matthews case they used as 
an example of a filibuster. Humpty Dumpty would be proud of them.
  The other nominations on Senator Durbin's list fare no better. 
Appeals court nominees Rosemary Barkett and Daniel Manion are on the 
filibuster list even though we did not take a cloture vote on them. 
Both of them were confirmed and currently sit on the bench.
  Eight others, including Republican nominee Edward Carnes and 
Democratic nominee Stephen Breyer, are on the list even though the 
Senate voted to invoke cloture on their nominations. The purpose was to 
get to the vote up and down.
  Abe Fortas is on the list even though his nomination was withdrawn 
after a failed cloture vote showed he did not have majority support and 
the opposition was solidly bipartisan--almost as many Democrats as 
there were Republicans. It was not an all-Democrat filibuster such as 
these have been.
  Here is the kicker: Eleven of the 112 nominees on Senator Durbin's 
filibuster list were confirmed by the Senate--all 11 of them--with 9 of 
them sitting on the Federal bench today. And as for Fortas, President 
Lyndon Johnson withdrew his nomination, not because there was a 
filibuster, because no less an authority than Robert Griffin, former 
Senator from Michigan, who had a reputation of impeccable honesty, has 
said that there was no filibuster. They had the votes to defeat Fortas 
up and down. They wanted 2 more days of debate so they could make the 
case better, but Fortas was going to be defeated up and down. So there 
was no filibuster there either.
  But even if there were, and even if you could stretch it and say 
there were, it was a bipartisan filibuster, if you could use the term 
filibuster, with almost as many Democrats as Republicans voting against 
Fortas. But I would take Senator Griffin's word on that, a man of 
impeccable honesty, who said there was no intent to filibuster by any 
Republican or Democrat on that nomination.
  None of these situations bears any resemblance to the filibuster of 
majority-supported judicial nominations underway today.
  Let me put this as clearly as I can. Not taking a cloture vote is no 
precedent for taking a cloture vote. Ending debate is no precedent for 
not ending debate. Confirming judicial nominations is no precedent for 
not confirming judicial nominations. And withdrawing nominations 
lacking majority support is no precedent for refusing to vote on 
nominations that have majority support.
  The second word they play on is ``extremists.'' Democrats and their 
leftwing interest group allies tell us they only use the filibuster 
against what they call extremist nominees. Trying to define this label, 
however, is like trying to nail Jell-O to a cactus in the Utah desert. 
Like the Constitution in the hand of an activist judge, it means 
whatever you want it to mean.
  No matter what the word means, this word extremist, Senators who 
truly believe a judicial nominee is an extremist may vote against him. 
They have a right to vote against anybody they think is an extremist. 
But this is no argument for refusing to vote in the first place.
  As our colleague Senator Kennedy said in February, 1998:

       We owe it to Americans across the country to give these 
     nominees a vote. If our . . . colleagues don't like them, 
     vote against them. But give them the vote.

  I wonder why the change today? I think he meant that statement back 
then. Why doesn't he mean it today?
  In September, 1999, the Judiciary Committee ranking member Senator 
Leahy similarly said our oath of office requires us to vote up or down 
on judicial nominations. Why the change today? It seems to me he meant 
it back then.
  Priscilla Owen, nominated by President Bush to the U.S. Court of 
Appeals for the Fifth Circuit, was reelected to the Texas Supreme Court 
in 2000, with 84 percent of the vote. There was no major party 
opposition, and the endorsement of every major newspaper in the State 
of Texas. Yet her opponents on the other side call her an extremist. No 
fewer than 15 presidents of the State bar of Texas, Democrats and 
Republicans, strongly endorse her nomination. Yet these opponents call 
her an extremist.

[[Page 6994]]

  She has been praised by groups such as the Texas Association of 
Defense Counsel and Legal Aid of Central Texas. Yet her opponents call 
her an extremist.
  The American Bar Association, often referred to by our friends on the 
other side as the ``gold standard'' to determine whether a person can 
sit on the bench, unanimously gave Justice Owen its highest rating of 
``well qualified.'' This means she has outstanding legal ability and 
breadth of experience, the highest reputation for integrity, and such 
qualities as compassion, openmindedness, freedom from bias, and 
commitment to equal justice under law. Yet some of the very Democrats 
who once said the ABA rating was the gold standard for evaluating 
judicial nominees now call Justice Owen an extremist.
  Another nominee branded an extremist is California Supreme Court 
Justice Janice Rogers Brown, nominated to the U.S. Court of Appeals for 
the DC Circuit. She is the daughter of Alabama sharecroppers. She 
attended segregated schools before receiving her law degree from the 
University of California at Los Angeles--in other words, UCLA. She has 
spent a quarter century in public service, serving in all three 
branches of State government.
  Off the bench, she has given speeches in which she expressed certain 
ideas through vivid images, strong rhetoric, and provocative argument. 
Yet it is what she does on the bench that matters most, and there she 
has been an evenhanded, judicious, and impartial justice on the 
California Supreme Court.
  George Washington University law professor Jonathan Turley knows the 
difference and recently wrote in the Los Angeles Times:

       But however inflammatory her remarks outside the courtroom, 
     Brown's legal opinions show a willingness to vote against 
     conservative views, particularly in criminal cases, when 
     justice demands it.

  In recent terms, Justice Brown has written more majority opinions 
than any of her colleagues on the California Supreme Court. Yet some in 
this body brand her an extremist. How can that be? Again, Humpty Dumpty 
would be proud of this type of misuse of words.
  A group of California law professors, including Democrats, 
Republicans, and Independents, wrote to our Judiciary Committee to say 
that Justice Brown's strongest credential is her openmindedness and 
thorough appraisal of legal argumentation ``even when her personal 
views conflict with those arguments.'' Yet some leftwing extremist 
groups call her an extremist.
  A diverse group of her current and former judicial colleagues wrote 
us that Justice Brown is ``a jurist who applies the law without favor, 
without bias, and with an even hand.'' It is no wonder that 76 percent 
of her fellow Californians voted to retain her in her State's highest 
court. Yet her opponents call her an extremist.
  If words mean anything, if we in the Senate really want to have a 
meaningful and responsible debate about such important things, then we 
should stop playing games with words such as ``filibuster'' or 
``extremist.'' There is no precedent whatsoever for these partisan, 
organized filibusters intended to defeat majority supported judicial 
nominations and, I might add, bipartisan majority supported judicial 
nominations.
  If Senators believe such highly qualified nominees, who know the 
difference between personal and judicial opinions and are widely 
praised for their integrity and impartiality, are extremists, then they 
should vote against them. But these people should be given an 
opportunity by having an up-and-down vote. Let's have a full and fair 
debate. Perhaps the critics will win the day against one or more of 
these nominees. I doubt it. But we must vote. That is what advise and 
consent means.
  Mr. President, as I close, let me return to the 1881 Matthews 
nomination for a moment, the one they have had to stretch to try to 
claim was a filibuster.
  In the 47th Congress, a Senate equally divided between Republicans 
and Democrats confirmed Justice Matthews by a single vote. No doubt, 
some opponents called him many things, perhaps even an extremist. Well, 
I doubt that because that has not happened until President Bush became 
President, as far as I can see in the way it has happened here. But we 
settled the controversy surrounding the Matthews nomination the old-
fashioned way--not by filibustering but by debating and voting up and 
down. There is no question we should return to that standard.
  I yield the floor.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The journal clerk proceeded to call the roll.
  Mr. COCHRAN. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________